Fisheries of the Northeastern United States; Atlantic Deep-Sea Red Crab; Amendment 3, 60379-60384 [2011-25158]
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Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Rules and Regulations
a tariff containing rates and regulations
applicable to the portion or through
service it furnishes in conjunction with
another subject carrier.
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[FR Doc. 2011–25201 Filed 9–28–11; 8:45 am]
50 CFR Part 648
BILLING CODE 1505–01–D
[Docket No. 100903433–1531–02]
RIN 0648–BA22
Fisheries of the Northeastern United
States; Atlantic Deep-Sea Red Crab;
Amendment 3
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
50 CFR Part 32
Hunting and Fishing
CFR Correction
In Title 50 of the Code of Federal
Regulations, Parts 18 to 199, revised as
of October 1, 2010, on page 448, in
§ 32.60, in the Ernest F. Hollings ACE
Basin National Wildlife Refuge,
reinstate paragraph D, to read as
follows:
§ 32.60
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South Carolina.
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Ernest F. Hollings ACE Basin National
Wildlife Refuge
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D. Sport Fishing. We allow fishing on
designated areas of the refuge in
accordance with State regulations
subject to the following conditions:
■ 1. We allow fishing in impounded
waters contained within dikes and
levees in the Beaufort County portion of
the refuge annually from April 1
through August 31 during daylight
hours. We close fishing during all
remaining times within all refugeimpounded waters.
■ 2. We prohibit boat use within refugeimpounded waters. We only allow bank
fishing.
■ 3. We only allow hook and line sport
fishing utilizing rod and reel or pole.
■ 4. We only open access into refuge
areas to fishing by foot or bicycle.
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[FR Doc. 2011–25199 Filed 9–28–11; 8:45 am]
BILLING CODE 1505–01–D
This final rule implements
measures that were approved in
Amendment 3 to the Atlantic Deep-Sea
Red Crab Fishery Management Plan
(FMP). The New England Fishery
Management Council (Council)
developed Amendment 3 to bring the
FMP into compliance with the annual
catch limit (ACL) and accountability
measure (AM) requirements of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act). This rule
establishes the mechanisms for
specifying an ACL and AMs and sets the
total allowable landings (TAL) for red
crab for the 2011–2013 fishing years
(FY). NMFS disapproved two proposed
measures in Amendment 3. This final
rule implements additional management
measures to promote efficiency in the
red crab fishery.
DATES: This rule is effective September
29, 2011.
ADDRESSES: An environmental
assessment (EA) was prepared for
Amendment 3 that describes the
proposed action and other considered
alternatives, and provides a thorough
analysis of the impacts of the proposed
measures and alternatives. Copies of
Amendment 3, including the EA and the
Initial Regulatory Flexibility Analysis
(IRFA), are available on request from
Paul J. Howard, Executive Director, New
England Fishery Management Council,
50 Water Street, Newburyport, MA
01950. These documents are also
available online at https://
www.nefmc.org.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Moira Kelly, Fishery Policy Analyst,
(978) 281–9218; fax: (978) 281–9135.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements approved
measures in Amendment 3, which was
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60379
partially approved by NMFS on behalf
of the Secretary of Commerce
(Secretary). A proposed rule to
implement the measures in Amendment
3 published in the Federal Register on
July 6, 2011 (76 FR 39369), with public
comments accepted through August 5,
2011. Details concerning the
development of Amendment 3 were
contained in the preamble of the
proposed rule and are not repeated here.
A Notice of Availability (NOA) for
Amendment 3 was published in the
Federal Register on June 22, 2011 (76
FR 36511), with public comments
accepted through August 22, 2011.
Amendment 3 was initiated to bring
the Red Crab FMP into compliance with
the Magnuson-Stevens Act and establish
a framework for an ACL and AMs. Red
crab is a data-poor stock and, in the
absence of better scientific information,
the SSC recommended setting the
acceptable biological catch (ABC) equal
to the long-term (1974–2008) average
landings of the directed red crab fishery
(3.91 million lb; 1,774 mt). The SSC
determined that the results from the
December 2008 Data Poor Stocks
Working Group were an underestimate
of the maximum sustainable yield
(MSY) for red crab, but could not
determine by how much, so the SSC did
not recommend an estimate of MSY. As
a result, the MSY estimate in the FMP
was rejected, but a new estimate could
not be determined. Because the SSC
could not determine MSY, a new value
for optimum yield (OY) could not be
developed. The overfishing limit (OFL)
is an estimate of the catch level above
which overfishing is occurring, but
based on the available information, the
SSC determined that an OFL could not
be estimated for the red crab fishery at
this time. The SSC concluded that
scientific uncertainty is accounted for
by using the precautionary approach of
the status quo, so setting ACL equal to
ABC is appropriate. The SSC also
concluded that the undeterminable level
of discards associated with the longterm average landings is sustainable,
and that setting the TAL equal to ACL
is also appropriate.
Disapproved Measures
1. Modification to Trap Limit
Restrictions
Changing the trap limit regulations to
depth-based trap limits as proposed by
the Council would be unenforceable and
inconsistent with the policy of the
Magnuson-Stevens Act that the
management program be based on the
Federal capabilities in carrying out
enforcement (Magnuson-Stevens Act
section 2(c)(3)). Depth-based provisions
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are impractical for enforcement because
the enforcement agent would have to
witness the deployment of traps beyond
the regulated depth range and/or
witness the at-sea retrieval of the traps
to determine compliance.
2. Prohibition on Landing Female Red
Crab
Removing the prohibition on landing
female red crabs, contingent upon a
recommendation from the SSC, would
be inconsistent with National Standard
2 of the Magnuson-Stevens Act and
administratively confusing. The SSC
determined that there were insufficient
data to support removing the existing
prohibition at this time and, because all
of the catch recommendations were
based on the long-term average landings
of the male-only directed fishery, the
SSC recommended the status quo as a
sustainable approach. Amendment 3
proposed to remove the prohibition on
landing female red crab only if the SSC
approved a landing limit; however, the
amendment did not specify how NMFS
should implement and monitor a mixedsex fishery. In addition, a framework
adjustment would be necessary to
implement management measures,
including the ACL framework, for
allowing the landing of female red crab
regardless of the approval of this
measure in Amendment 3.
Approved Measures
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1. Biological and Management
Reference Points
The biological and management
reference points currently in the Red
Crab FMP are used to determine if
overfishing is occurring or if the stock
is overfished. However, these reference
points are not sufficient to comply with
the Magnuson-Stevens Act and the
National Standard 1 (NS1) guidelines.
As a result, the Council intended to
establish new estimates for MSY, OY,
OFL, and ABC for red crab. However,
MSY, OY, and OFL could not be
estimated with the available
information, and ABC is defined in
terms of landings instead of total catch
(i.e., the red crab ABC does not include
dead discards).
The OFL is an estimate of the catch
level above which overfishing is
occurring, but based on the available
information, the SSC determined that an
OFL could not be estimated for the red
crab fishery at this time.
ABC is defined under the MagnusonStevens Act as ‘‘a level of stock or stock
complex’s annual catch that accounts
for the scientific uncertainty in the
estimate of OFL and any other scientific
uncertainty, and should be specified
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based on the ABC control rule.’’ The
NS1 guidelines further state that ‘‘ABC
may not exceed OFL,’’ and that ‘‘the
determination of ABC should be based,
when possible, on the probability that
an actual catch equal to a stock’s ABC
would result in overfishing.’’ These
guidelines also require that the
Council’s ABC control rule be based on
scientific advice provided by its SSC
and that the SSC recommend the ABC
to the Council.
The SSC, at its March 16, 2010,
meeting, determined that the available
information for red crab provided an
insufficient basis on which to
recommend an ABC control rule, and
that ‘‘an interim ABC based on longterm average landings is safely below an
overfishing threshold and adequately
accounts for scientific uncertainty.’’ The
SSC reviewed information on historical
dead discards of red crab in the directed
trap fishery and in bycatch fisheries at
its June 22, 2010, meeting in an effort to
recommend an ABC that includes both
landings and dead discards. The SSC
determined that there was insufficient
information to specify dead discards,
but that the long-term average landings,
and the presumed discarding practices
associated with those landings, were
sustainable, and maintained its
recommendation of specifying the
interim red crab ABC in terms of
landings only. Based on this approach,
the long-term average landings for
1974–2008 result in an ABC of 3.91
million lb (1,775 mt), represented in
terms of commercial landings.
2. ACL
The Magnuson-Stevens Act, under
section 303(a)(15), requires that any
FMP establish a mechanism for
specifying ACLs at a level that prevents
overfishing. The NS1 guidelines further
state that the ACL for a given stock or
stock complex cannot exceed the ABC,
that it serves as the basis for invoking
AMs, and that ACLs in coordination
with AMs must prevent overfishing.
Based on the requirements of the
Magnuson-Stevens Act and the NS1
guidelines with respect to ACLs and
AMs, Amendment 3 establishes an ACL
for red crab that is equal to the ABC.
Amendment 3 also sets the TAL equal
to the ACL for FYs 2011–2013, because
the management uncertainty in the red
crab fishery is minimal and the SSC
determined that there was insufficient
information to specify dead discards.
3. Accountability Measures
The NS1 guidelines describe AMs as
management controls aimed at
preventing the ACL from being
exceeded, and to correct or mitigate
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overages of the ACL. Amendment 3
implements both proactive and reactive
AMs for the red crab fishery. The
proactive AM grants the NMFS Regional
Administrator the authority to close the
red crab fishery when the TAL is
projected to be harvested. The reactive
AM is a pound-for-pound payback of
any overage, should the TAL be
exceeded. In any year in which the ACL
and TAL are not equal, if the ACL is
exceeded, the amount of that overage
not already deducted from the TAL (e.g.,
higher than expected discards, or an
unexpected increase in incidental
landings by vessels with open access
red crab permits) will be deducted from
the subsequent single fishing year’s
ACL.
4. FYs 2011–2013 Specifications
The following specifications will be
in effect for FYs 2011–2013:
mt
MSY .......
OFL ........
OY .........
ABC .......
ACL ........
TAL ........
undetermined ..
undetermined ..
undetermined ..
1,775 ...............
1,775 ...............
1,775 ...............
Million lb
undetermined.
undetermined.
undetermined.
3.91.
3.91.
3.91.
5. TAL; Eliminate DAS
This measure replaces the DAS and
target TAC management program with a
TAL. This simplifies the management
measures for red crab, provides
increased flexibility to the red crab fleet,
and ensures more accurate accounting
of the catch limits and monitoring of the
catch.
6. Eliminate Trip Limits
Red crab vessels qualified for a trip
limit during the initial limited access
qualification process. The FMP
specified a trip limit of 75,000 lb
(34,019 kg), unless a vessel owner could
demonstrate he or she landed more than
75,000 lb (34,019 kg) on a trip during
the qualification period and was granted
a trip limit equal to that higher level,
rounded to the nearest 5,000 lb (2,268
kg). One vessel qualified under that
provision, and has operated with a trip
limit of 125,000 lb (56,699 kg) since
2002. Amendment 3 eliminates these
trip limits to simplify the management
measures for red crab and to provide
increased flexibility to the red crab fleet.
Comments and Responses
Two comments were received on the
proposed rule and the amendment. One
comment was received on the NOA,
from the National Park Service, stating
no objection to Amendment 3. One
comment was received on the proposed
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rule from an individual recommending
that NMFS cut all quotas, including the
red crab quota, by 50 percent.
Amendment 3 proposed, and this final
rule implements, a catch level
consistent with the best available
scientific information, as recommended
by the SSC.
Classification
The Administrator, Northeast Region,
NMFS, determined that Amendment 3
is necessary for the conservation and
management of the red crab fishery and
is consistent with the MagnusonStevens Act and other applicable laws.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
Pursuant to 5 U.S.C. 553(d)(1), NMFS
finds good cause to waive the 30-day
delayed effectiveness provision of the
APA because any delay in effectiveness
is unnecessary. This action implements
a TAL that is equal to the target TAC
that the fishery is currently operating
under for FY 2011, establishes AMs that
would not be implemented unless the
TAL is exceeded, and removes the DAS
program and trip limits for the limited
access red crab fleet. The purpose of the
delay in effectiveness is to allow
affected parties time to modify their
behaviors, businesses, or practices to
come into compliance with new
regulations. This rule imposes no
additional requirements on the affected
entities. It retains the current TAL for
the red crab fishery, and removes the
DAS and trip limit restrictions; thus,
implementing this rule will not affect
the day-to-day operations of the fleet In
fact, removing the DAS and trip limit
restrictions will allow the red crab fleet
to fish more efficiently and provides
flexibility to vessel owners. The AM to
close the directed fishery will not
necessarily impact the fishery, because
the AM will only be implemented if
TAL is exceeded prior to the end of the
FY, which may not occur. Because
implementing the rule upon publication
will not require any change in fishery
practices, nor will it cause a fishery
participant to be in violation of a new
regulation, delaying the rule’s
effectiveness for thirty days is
unnecessary.
Moreover, waiving the delayed
effectiveness of this rule is in the public
interest. Currently, five vessels divide
equally the total number of DAS, even
though only four vessels are fishing. The
fleet had anticipated that Amendment 3
would be effective at an earlier date, and
did not exercise its ability to ‘‘opt out’’
the one permit that does not fish last
fall, which would have reallocated the
fleet DAS between four vessels instead
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of five. Thus, each vessel has a lower
allocation of red crab DAS than they
would have had they opted out one
permit. In addition, one of the vessels is
nearing the end of its DAS allocation
and would have to stop fishing until
this rule is implemented. Finally, this
rule will increase the fleet’s flexibility
and ability to take the entire fishing
quota, which is the purpose of the rule.
Currently, the fleet is half-way through
the fishing year, but only 40% through
the quota. If this rule is not
implemented upon publication, the
purpose of the rule may be undermined.
Accordingly, the delay in
effectiveness is unnecessary and
contrary to the public’s interest, and is
hereby waived.
The Council prepared an EA for
Amendment 3. Based on the analysis in
the EA, the AA concluded that there
will be no significant impact on the
human environment as a result of this
rule. A copy of the EA is available from
the Council (see ADDRESSES).
NMFS, pursuant to section 604 of the
Regulatory Flexibility Act (RFA), has
prepared a FRFA in support of
Amendment 3. The FRFA incorporates
the IRFA, a summary of the significant
issues raised by the public comments in
response to the IRFA, NMFS’ responses
to those comments, relevant analyses in
the Amendment and its EA, and a
summary of the analyses completed to
support the action implemented through
this rule. A copy of the analyses done
in the Amendment and EA is available
from the Council (see ADDRESSES). A
summary of the IRFA was published in
the proposed rule for this action and is
not repeated here. A description of why
this action was considered, the
objectives of, and the legal basis for this
rule is contained in the preamble to the
proposed rule and this final rule and is
not repeated here.
A Summary of the Significant Issues
Raised by the Public in Response to the
IRFA, a Summary of the Agency’s
Assessment of Such Issues, and a
Statement of Any Changes Made in the
Proposed Rule as a Result of Such
Comments
Two comments were received on the
proposed rule and the amendment.
However, neither of these comments
were specific to the IRFA or economic
analysis contained in Amendment 3.
Description and Estimate of Number of
Small Entities to Which the Final Rule
Will Apply
The Small Business Administration
(SBA) considers commercial fishing
entities (NAICS code 114111) to be
small entities if they have no more than
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60381
$4 million in annual sales, while the
size standard for charter/party operators
(part of NAICS cod 487210) is $7
million in sales. The participants in the
commercial red crab fishery are those
vessels issued limited access red crab
permits. Although some firms own more
than one vessel, available data make it
difficult to reliably identify ownership
control over more than one vessel. For
this analysis, the number of permitted
vessels is considered to be a maximum
estimate of the number of small
business entities. However, the total
value of landings in the red crab fishery
averaged $3.44 million, so all business
entities in the harvesting sector can be
categorized as small businesses for
purpose of the RFA, even if the
assumption overstates the number of
business entities. For the reasons above,
all vessels with limited access permits
would be considered small business
entities that would be affected by the
proposed action. As of September 2011,
there were four vessels with limited
access red crab permits actively
operating in the red crab fishery.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
There are no compliance
requirements associated with this final
rule implementing Amendment 3.
This final rule does not duplicate,
overlap, or conflict with other Federal
rules.
Description of the Steps the Agency Has
Taken To Minimize the Significant
Economic Impact on Small Entities
Consistent With the Stated Objectives of
Applicable Statutes
All of the management measures in
Amendment 3 that were approved by
NMFS provide for increased flexibility
and promote efficiency within the
fishery. This action implements a
measure that eliminates the DAS
requirements, which provides for
increased flexibility for vessel owners to
fish without concern for their DAS
clock. Amendment 3 also removes the
commercial trip limit, which eliminates
regulatory discards and promotes
efficiency. Therefore, by implementing
management measures that increase
flexibility and efficiency and reduce
waste, NMFS has taken the steps
necessary to minimize the impacts of
this action on small entities consistent
with the stated objectives of applicable
statutes.
Small Entity Compliance Guide
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996 states that, for each rule or group
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of related rules for which an agency is
required to prepare a FRFA, the agency
shall publish one or more guides to
assist small entities in complying with
the rule, and shall designate such
publications as ‘‘small entity
compliance guides.’’ The agency shall
explain the actions a small entity is
required to take to comply with a rule
or group of rules. As part of this
rulemaking process, a letter to permit
holders that also serves as small entity
compliance guide (the guide) was
prepared. Copies of this final rule are
available from the Northeast Regional
Office, and the guide, i.e., permit holder
letter, will be sent to all holders of
permits for the red crab fishery. The
guide and this final rule will be
available upon request, and posted on
the Northeast Regional Office’s Web site
at https://www.nero.noaa.gov.
List of Subjects in 50 CFR Part 648
3. In § 648.4, paragraphs
(a)(13)(i)(E)(3), (a)(13)(i)(M), and
(a)(13)(i) (N) are removed; and
paragraphs (a)(13)(i)(A) and (B) are
revised to read as follows:
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§ 648.4
Vessel permits.
(a) * * *
(13) * * *
(i) Limited access red crab permit
—(A) Eligibility. Any vessel of the
United States that possesses or lands
more than the incidental amount of red
crab, as specified in § 648.263(b), per
red crab trip must have been issued and
carry on board a valid limited access red
crab permit.
(B) Application/renewal restrictions.
The provisions of paragraph (a)(1)(i)(B)
of this section apply.
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§ 648.7
[Amended]
Fisheries, Fishing, Recordkeeping and
reporting requirements.
Dated: September 23, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
4. In § 648.7, paragraph (b)(2)(iii) is
removed.
■ 5. In § 648.10, paragraphs (h)
introductory text, (h)(4), and (h)(8) are
revised to read as follows:
§ 648.10 VMS and DAS requirements for
vessel owners/operators.
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For the reasons set out in the
preamble, 50 CFR part 648 is amended
as follows:
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
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Authority: 16 U.S.C. 1801 et seq.
2. In § 648.2, the definition for
‘‘Day(s)-at-Sea’’ is revised, and the
definition for ‘‘Red crab trip’’ is added,
in alphabetical order, to read as follows:
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§ 648.2
Definitions.
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Day(s)-at-Sea (DAS), with respect to
the NE multispecies and monkfish
fisheries (except as described in
§ 648.82(k)(1)(iv)), and the Atlantic sea
scallop fishery, means the 24-hr period
of time or any part thereof during which
a fishing vessel is absent from port to
fish for, possess, or land, or fishes for,
possesses or lands, regulated species,
monkfish, or scallops.
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Red crab trip, with respect to the
Atlantic deep-sea red crab fishery,
means a trip on which a vessel fishes
for, possesses, or lands, or intends to
fish for, possess, or land red crab in
excess of the incidental limit, as
specified at § 648.263(b)(1).
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(h) Call-in notification. The owner of
a vessel issued a limited access
monkfish permit who is participating in
a DAS program and who is not required
to provide notification using a VMS,
and a scallop vessel qualifying for a
DAS allocation under the occasional
category that has not elected to fish
under the VMS notification
requirements of paragraph (e) of this
section and is not participating in the
Sea Scallop Area Access program as
specified in § 648.60, and any vessel
that may be required by the Regional
Administrator to use the call-in program
under paragraph (i) of this section, are
subject to the following requirements:
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(4) The vessel’s confirmation numbers
for the current and immediately prior
NE multispecies or monkfish fishing
trip must be maintained on board the
vessel and provided to an authorized
officer immediately upon request.
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(8) Any vessel issued a limited access
scallop permit and not issued an LAGC
scallop permit that possesses or lands
scallops; any vessel issued a limited
access scallop and LAGC IFQ scallop
permit that possesses or lands more
than 600 lb (272.2 kg) of scallops; any
vessel issued a limited access scallop
and LAGC NGOM scallop permit that
possesses or lands more than 200 lb
(90.7 kg) of scallops; any vessel issued
a limited access scallop and LAGC IC
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scallop permit that possesses or lands
more than 40 lb (18.1 kg) of scallops;
any vessel issued a limited access NE
multispecies permit subject to the NE
multispecies DAS program requirements
that possesses or lands regulated NE
multispecies, except as provided in
§§ 648.10(h)(9)(ii), 648.17, and 648.89;
and any vessel issued a limited access
monkfish permit subject to the monkfish
DAS program and call-in requirement
that possess or lands monkfish above
the incidental catch trip limits specified
in § 648.94(c) shall be deemed to be in
its respective DAS program for purposes
of counting DAS and will be charged
DAS from its time of sailing to landing,
regardless of whether the vessel’s owner
or authorized representative provides
adequate notification as required by
paragraphs (e) through (h) of this
section.
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■ 6. In § 648.14, paragraphs (t)(2)(iii)
and (t)(3)(iv) are added; paragraphs (t)(4)
through (6) are revised; and paragraph
(t)(7) is removed to read as follows:
§ 648.14
Prohibitions.
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(t) * * *
(2) * * *
(iii) Fish for, possess, or land red crab,
in excess of the incidental limit
specified at § 648.263(b)(1), after
determination that the TAL has been
reached and notice of the closure date
has been made.
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(3) * * *
(iv) Purchase or otherwise receive for
a commercial purpose in excess of the
incidental limit specified at
§ 648.263(b)(1), after determination that
the TAL has been reached and notice of
the closure date has been made.
(4) Prohibitions on processing and
mutilation. (i) Retain, possess, or land
red crab claws and legs separate from
crab bodies in excess of one standard
U.S. fish tote, if fishing on a red crab
trip with a valid Federal limited access
red crab permit.
(ii) Retain, possess, or land any red
crab claws and legs separate from crab
bodies if the vessel has not been issued
a valid Federal limited access red crab
permit or has been issued a valid
Federal limited access red crab permit,
but is not fishing on a dedicated red
crab trip.
(iii) Retain, possess, or land more than
two claws and eight legs per crab if the
vessel has been issued a valid Federal
red crab incidental catch permit, or has
been issued a valid Federal limited
access red crab permit and is not fishing
on a dedicated red crab trip.
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(iv) Possess or land red crabs that
have been fully processed at sea, i.e.,
engage in any activity that removes meat
from any part of a red crab, unless a
preponderance of available evidence
shows that the vessel fished exclusively
in state waters and was not issued a
valid Federal permit.
(5) Gear requirements. Fail to comply
with any gear requirements or
restrictions specified at § 648.264.
(6) Presumption. For purposes of this
part, the following presumption applies:
All red crab retained or possessed on a
vessel issued any permit under § 648.4
are deemed to have been harvested in or
from the Red Crab Management Unit,
unless the preponderance of all
submitted evidence demonstrates that
such red crab were harvested by a vessel
fishing exclusively outside of the Red
Crab Management Unit or in state
waters.
*
*
*
*
*
■ 7. Section 648.260 is revised to read
as follows:
tkelley on DSKG8SOYB1PROD with RULES
§ 648.260
Specifications.
(a) Annual review and specifications
process. The Council, the Red Crab Plan
Development Team (PDT), and the Red
Crab Advisory Panel shall monitor the
status of the red crab fishery and
resource.
(1) The Red Crab PDT shall meet at
least once annually during the
intervening years between Stock
Assessment and Fishery Evaluation
(SAFE) Reports, described in paragraph
(b) of this section, to review the status
of the stock and the fishery. Based on
such review, the PDT shall provide a
report to the Council on any changes or
new information about the red crab
stock and/or fishery, and it shall
recommend whether the specifications
for the upcoming year(s) need to be
modified. At a minimum, this review
shall include a review of at least the
following data, if available: commercial
catch data; current estimates of fishing
mortality and catch-per-unit-effort
(CPUE); discards; stock status; recent
estimates of recruitment; virtual
population analysis results and other
estimates of stock size; sea sampling,
port sampling, and survey data or, if sea
sampling data are unavailable, length
frequency information from port
sampling and/or surveys; impact of
other fisheries on the mortality of red
crabs; and any other relevant
information.
(2) If new and/or additional
information becomes available, the Red
Crab PDT shall consider it during this
annual review. Based on this review, the
Red Crab PDT shall provide guidance to
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14:44 Sep 28, 2011
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the Red Crab Committee and the
Council regarding the need to adjust
measures in the Red Crab FMP to better
achieve the FMP’s objectives. After
considering guidance, the Council may
submit to NMFS its recommendations
for changes to management measures, as
appropriate, through the specifications
process described in this section, the
framework process specified in
§ 648.261, or through an amendment to
the FMP.
(3) Based on the annual review,
described above, and/or the SAFE
Report described in paragraph (b) of this
section, recommendations for
acceptable biological catch (ABC) from
the Scientific and Statistical Committee
(SSC), and any other relevant
information, the Red Crab PDT shall
recommend to the Red Crab Committee
and Council the following specifications
for harvest of red crab: an annual catch
limit (ACL) set less than or equal to
ABC; and total allowable landings (TAL)
necessary to meet the objectives of the
FMP in each red crab fishing year,
specified for a period of up to 3 fishing
years.
(4) The PDT, after its review of the
available information on the status of
the stock and the fishery, may
recommend to the Council any
measures necessary to assure that the
specifications will not be exceeded, as
well as changes to the appropriate
specifications.
(5) Taking into account the annual
review and/or SAFE Report described in
paragraph (b) of this section, the advice
of the SSC, and any other relevant
information, the Red Crab PDT may also
recommend to the Red Crab Committee
and Council changes to stock status
determination criteria and associated
thresholds based on the best scientific
information available, including
information from peer-reviewed stock
assessments of red crab. These
adjustments may be included in the
Council’s specifications for the red crab
fishery.
(6) Council recommendation—(i) The
Council shall review the
recommendations of the Red Crab PDT,
Red Crab Committee, and SSC, any
public comment received thereon, and
any other relevant information, and
make a recommendation to the Regional
Administrator on appropriate
specifications and any measures
necessary to assure that the
specifications will not be exceeded.
(ii) The Council’s recommendation
must include supporting
documentation, as appropriate,
concerning the environmental,
economic, and social impacts of the
recommendations. The Regional
PO 00000
Frm 00027
Fmt 4700
Sfmt 4700
60383
Administrator shall consider the
recommendations and publish a rule in
the Federal Register proposing
specifications and associated measures,
consistent with the Administrative
Procedure Act.
(iii) The Regional Administrator may
propose specifications different than
those recommended by the Council. If
the specifications published in the
Federal Register differ from those
recommended by the Council, the
reasons for any differences must be
clearly stated and the revised
specifications must satisfy the criteria
set forth in this section, the FMP, and
other applicable laws.
(iv) If the final specifications are not
published in the Federal Register for
the start of the fishing year, the previous
year’s specifications shall remain in
effect until superseded by the final rule
implementing the current year’s
specifications, to ensure that there is no
lapse in regulations while new
specifications are completed.
(b) SAFE Report. (1) The Red Crab
PDT shall prepare a SAFE Report at
least every 3 yr. Based on the SAFE
Report, the Red Crab PDT shall develop
and present to the Council
recommended specifications as defined
in paragraph (a) of this section for up to
3 fishing years. The SAFE Report shall
be the primary vehicle for the
presentation of all updated biological
and socio-economic information
regarding the red crab fishery. The
SAFE Report shall provide source data
for any adjustments to the management
measures that may be needed to
continue to meet the goals and
objectives of the FMP.
(2) In any year in which a SAFE
Report is not completed by the Red Crab
PDT, the annual review process
described in paragraph (a) of this
section shall be used to recommend any
necessary adjustments to specifications
and/or management measures in the
FMP.
8. Section 648.262 is revised to read
as follows:
■
§ 648.262 Accountability measures for red
crab limited access vessels.
(a) Closure authority. NMFS shall
close the EEZ to fishing for red crab in
excess of the incidental limit by
commercial vessels for the remainder of
the fishing year if the Regional
Administrator determines that the TAL
has been harvested. Upon notification of
the closure, a vessel issued a limited
access red crab permit may not fish for,
catch, possess, transport, land, sell,
trade, or barter, in excess of 500 lb
(226.8 kg) of red crab, or its equivalent
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tkelley on DSKG8SOYB1PROD with RULES
in weight as specified at
§ 648.263(a)(2)(i) and (ii), per fishing
trip in or from the Red Crab
Management Unit.
(b) Adjustment for an overage. (1) If
NMFS determines that the TAL was
exceeded in a given fishing year, the
exact amount of the landings overage
will be deducted, as soon as is
practicable, from a subsequent single
fishing year’s TAL, through notification
consistent with the Administrative
Procedure Act.
(2) If NMFS determines that the ACL
was exceeded in a given fishing year,
the exact amount of an overage that was
not already deducted from the TAL
under paragraph (b)(i) of this section
will be deducted, as soon as is
practicable, from a subsequent single
fishing year’s TAL, through notification
consistent with the Administrative
Procedure Act.
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14:44 Sep 28, 2011
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9. In § 648.263, paragraph (a)(1) is
removed and reserved, and paragraphs
(a)(5) and (b)(1) are revised to read as
follows:
■
§ 648.263 Red crab possession and
landing restrictions.
(a) * * *
(5) Mutilation restriction. A vessel
may not retain, possess, or land red crab
claws and legs separate from crab bodies
in excess of one standard U.S. fish tote
per trip when fishing on a dedicated red
crab trip.
(b) * * *
(1) Possession and landing
restrictions. A vessel or operator of a
vessel that has been issued a red crab
incidental catch permit, or a vessel
issued a limited access red crab permit
not on a dedicated red crab trip, as
defined in § 648.2, may catch, possess,
transport, land, sell, trade, or barter, up
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Frm 00028
Fmt 4700
Sfmt 9990
to 500 lb (226.8 kg) of red crab, or its
equivalent in weight as specified at
paragraphs (a)(1)(i) and (ii) of this
section, per fishing trip in or from the
Red Crab Management Unit.
*
*
*
*
*
10. In § 648.264, paragraph (a)(1) is
revised to read as follows:
■
§ 648.264
Gear requirements/restrictions.
(a) * * *
(1) Limited access red crab vessel may
not harvest red crab from any fishing
gear other than red crab traps/pots,
marked as specified by paragraph (a)(5)
of this section.
*
*
*
*
*
[FR Doc. 2011–25158 Filed 9–28–11; 8:45 am]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Rules and Regulations]
[Pages 60379-60384]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25158]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100903433-1531-02]
RIN 0648-BA22
Fisheries of the Northeastern United States; Atlantic Deep-Sea
Red Crab; Amendment 3
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements measures that were approved in
Amendment 3 to the Atlantic Deep-Sea Red Crab Fishery Management Plan
(FMP). The New England Fishery Management Council (Council) developed
Amendment 3 to bring the FMP into compliance with the annual catch
limit (ACL) and accountability measure (AM) requirements of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This rule establishes the mechanisms for specifying an
ACL and AMs and sets the total allowable landings (TAL) for red crab
for the 2011-2013 fishing years (FY). NMFS disapproved two proposed
measures in Amendment 3. This final rule implements additional
management measures to promote efficiency in the red crab fishery.
DATES: This rule is effective September 29, 2011.
ADDRESSES: An environmental assessment (EA) was prepared for Amendment
3 that describes the proposed action and other considered alternatives,
and provides a thorough analysis of the impacts of the proposed
measures and alternatives. Copies of Amendment 3, including the EA and
the Initial Regulatory Flexibility Analysis (IRFA), are available on
request from Paul J. Howard, Executive Director, New England Fishery
Management Council, 50 Water Street, Newburyport, MA 01950. These
documents are also available online at https://www.nefmc.org.
FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst,
(978) 281-9218; fax: (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements approved measures in Amendment 3, which
was partially approved by NMFS on behalf of the Secretary of Commerce
(Secretary). A proposed rule to implement the measures in Amendment 3
published in the Federal Register on July 6, 2011 (76 FR 39369), with
public comments accepted through August 5, 2011. Details concerning the
development of Amendment 3 were contained in the preamble of the
proposed rule and are not repeated here. A Notice of Availability (NOA)
for Amendment 3 was published in the Federal Register on June 22, 2011
(76 FR 36511), with public comments accepted through August 22, 2011.
Amendment 3 was initiated to bring the Red Crab FMP into compliance
with the Magnuson-Stevens Act and establish a framework for an ACL and
AMs. Red crab is a data-poor stock and, in the absence of better
scientific information, the SSC recommended setting the acceptable
biological catch (ABC) equal to the long-term (1974-2008) average
landings of the directed red crab fishery (3.91 million lb; 1,774 mt).
The SSC determined that the results from the December 2008 Data Poor
Stocks Working Group were an underestimate of the maximum sustainable
yield (MSY) for red crab, but could not determine by how much, so the
SSC did not recommend an estimate of MSY. As a result, the MSY estimate
in the FMP was rejected, but a new estimate could not be determined.
Because the SSC could not determine MSY, a new value for optimum yield
(OY) could not be developed. The overfishing limit (OFL) is an estimate
of the catch level above which overfishing is occurring, but based on
the available information, the SSC determined that an OFL could not be
estimated for the red crab fishery at this time. The SSC concluded that
scientific uncertainty is accounted for by using the precautionary
approach of the status quo, so setting ACL equal to ABC is appropriate.
The SSC also concluded that the undeterminable level of discards
associated with the long-term average landings is sustainable, and that
setting the TAL equal to ACL is also appropriate.
Disapproved Measures
1. Modification to Trap Limit Restrictions
Changing the trap limit regulations to depth-based trap limits as
proposed by the Council would be unenforceable and inconsistent with
the policy of the Magnuson-Stevens Act that the management program be
based on the Federal capabilities in carrying out enforcement
(Magnuson-Stevens Act section 2(c)(3)). Depth-based provisions
[[Page 60380]]
are impractical for enforcement because the enforcement agent would
have to witness the deployment of traps beyond the regulated depth
range and/or witness the at-sea retrieval of the traps to determine
compliance.
2. Prohibition on Landing Female Red Crab
Removing the prohibition on landing female red crabs, contingent
upon a recommendation from the SSC, would be inconsistent with National
Standard 2 of the Magnuson-Stevens Act and administratively confusing.
The SSC determined that there were insufficient data to support
removing the existing prohibition at this time and, because all of the
catch recommendations were based on the long-term average landings of
the male-only directed fishery, the SSC recommended the status quo as a
sustainable approach. Amendment 3 proposed to remove the prohibition on
landing female red crab only if the SSC approved a landing limit;
however, the amendment did not specify how NMFS should implement and
monitor a mixed-sex fishery. In addition, a framework adjustment would
be necessary to implement management measures, including the ACL
framework, for allowing the landing of female red crab regardless of
the approval of this measure in Amendment 3.
Approved Measures
1. Biological and Management Reference Points
The biological and management reference points currently in the Red
Crab FMP are used to determine if overfishing is occurring or if the
stock is overfished. However, these reference points are not sufficient
to comply with the Magnuson-Stevens Act and the National Standard 1
(NS1) guidelines. As a result, the Council intended to establish new
estimates for MSY, OY, OFL, and ABC for red crab. However, MSY, OY, and
OFL could not be estimated with the available information, and ABC is
defined in terms of landings instead of total catch (i.e., the red crab
ABC does not include dead discards).
The OFL is an estimate of the catch level above which overfishing
is occurring, but based on the available information, the SSC
determined that an OFL could not be estimated for the red crab fishery
at this time.
ABC is defined under the Magnuson-Stevens Act as ``a level of stock
or stock complex's annual catch that accounts for the scientific
uncertainty in the estimate of OFL and any other scientific
uncertainty, and should be specified based on the ABC control rule.''
The NS1 guidelines further state that ``ABC may not exceed OFL,'' and
that ``the determination of ABC should be based, when possible, on the
probability that an actual catch equal to a stock's ABC would result in
overfishing.'' These guidelines also require that the Council's ABC
control rule be based on scientific advice provided by its SSC and that
the SSC recommend the ABC to the Council.
The SSC, at its March 16, 2010, meeting, determined that the
available information for red crab provided an insufficient basis on
which to recommend an ABC control rule, and that ``an interim ABC based
on long-term average landings is safely below an overfishing threshold
and adequately accounts for scientific uncertainty.'' The SSC reviewed
information on historical dead discards of red crab in the directed
trap fishery and in bycatch fisheries at its June 22, 2010, meeting in
an effort to recommend an ABC that includes both landings and dead
discards. The SSC determined that there was insufficient information to
specify dead discards, but that the long-term average landings, and the
presumed discarding practices associated with those landings, were
sustainable, and maintained its recommendation of specifying the
interim red crab ABC in terms of landings only. Based on this approach,
the long-term average landings for 1974-2008 result in an ABC of 3.91
million lb (1,775 mt), represented in terms of commercial landings.
2. ACL
The Magnuson-Stevens Act, under section 303(a)(15), requires that
any FMP establish a mechanism for specifying ACLs at a level that
prevents overfishing. The NS1 guidelines further state that the ACL for
a given stock or stock complex cannot exceed the ABC, that it serves as
the basis for invoking AMs, and that ACLs in coordination with AMs must
prevent overfishing. Based on the requirements of the Magnuson-Stevens
Act and the NS1 guidelines with respect to ACLs and AMs, Amendment 3
establishes an ACL for red crab that is equal to the ABC. Amendment 3
also sets the TAL equal to the ACL for FYs 2011-2013, because the
management uncertainty in the red crab fishery is minimal and the SSC
determined that there was insufficient information to specify dead
discards.
3. Accountability Measures
The NS1 guidelines describe AMs as management controls aimed at
preventing the ACL from being exceeded, and to correct or mitigate
overages of the ACL. Amendment 3 implements both proactive and reactive
AMs for the red crab fishery. The proactive AM grants the NMFS Regional
Administrator the authority to close the red crab fishery when the TAL
is projected to be harvested. The reactive AM is a pound-for-pound
payback of any overage, should the TAL be exceeded. In any year in
which the ACL and TAL are not equal, if the ACL is exceeded, the amount
of that overage not already deducted from the TAL (e.g., higher than
expected discards, or an unexpected increase in incidental landings by
vessels with open access red crab permits) will be deducted from the
subsequent single fishing year's ACL.
4. FYs 2011-2013 Specifications
The following specifications will be in effect for FYs 2011-2013:
------------------------------------------------------------------------
mt Million lb
------------------------------------------------------------------------
MSY............................. undetermined...... undetermined.
OFL............................. undetermined...... undetermined.
OY.............................. undetermined...... undetermined.
ABC............................. 1,775............. 3.91.
ACL............................. 1,775............. 3.91.
TAL............................. 1,775............. 3.91.
------------------------------------------------------------------------
5. TAL; Eliminate DAS
This measure replaces the DAS and target TAC management program
with a TAL. This simplifies the management measures for red crab,
provides increased flexibility to the red crab fleet, and ensures more
accurate accounting of the catch limits and monitoring of the catch.
6. Eliminate Trip Limits
Red crab vessels qualified for a trip limit during the initial
limited access qualification process. The FMP specified a trip limit of
75,000 lb (34,019 kg), unless a vessel owner could demonstrate he or
she landed more than 75,000 lb (34,019 kg) on a trip during the
qualification period and was granted a trip limit equal to that higher
level, rounded to the nearest 5,000 lb (2,268 kg). One vessel qualified
under that provision, and has operated with a trip limit of 125,000 lb
(56,699 kg) since 2002. Amendment 3 eliminates these trip limits to
simplify the management measures for red crab and to provide increased
flexibility to the red crab fleet.
Comments and Responses
Two comments were received on the proposed rule and the amendment.
One comment was received on the NOA, from the National Park Service,
stating no objection to Amendment 3. One comment was received on the
proposed
[[Page 60381]]
rule from an individual recommending that NMFS cut all quotas,
including the red crab quota, by 50 percent. Amendment 3 proposed, and
this final rule implements, a catch level consistent with the best
available scientific information, as recommended by the SSC.
Classification
The Administrator, Northeast Region, NMFS, determined that
Amendment 3 is necessary for the conservation and management of the red
crab fishery and is consistent with the Magnuson-Stevens Act and other
applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Pursuant to 5 U.S.C. 553(d)(1), NMFS finds good cause to waive the
30-day delayed effectiveness provision of the APA because any delay in
effectiveness is unnecessary. This action implements a TAL that is
equal to the target TAC that the fishery is currently operating under
for FY 2011, establishes AMs that would not be implemented unless the
TAL is exceeded, and removes the DAS program and trip limits for the
limited access red crab fleet. The purpose of the delay in
effectiveness is to allow affected parties time to modify their
behaviors, businesses, or practices to come into compliance with new
regulations. This rule imposes no additional requirements on the
affected entities. It retains the current TAL for the red crab fishery,
and removes the DAS and trip limit restrictions; thus, implementing
this rule will not affect the day-to-day operations of the fleet In
fact, removing the DAS and trip limit restrictions will allow the red
crab fleet to fish more efficiently and provides flexibility to vessel
owners. The AM to close the directed fishery will not necessarily
impact the fishery, because the AM will only be implemented if TAL is
exceeded prior to the end of the FY, which may not occur. Because
implementing the rule upon publication will not require any change in
fishery practices, nor will it cause a fishery participant to be in
violation of a new regulation, delaying the rule's effectiveness for
thirty days is unnecessary.
Moreover, waiving the delayed effectiveness of this rule is in the
public interest. Currently, five vessels divide equally the total
number of DAS, even though only four vessels are fishing. The fleet had
anticipated that Amendment 3 would be effective at an earlier date, and
did not exercise its ability to ``opt out'' the one permit that does
not fish last fall, which would have reallocated the fleet DAS between
four vessels instead of five. Thus, each vessel has a lower allocation
of red crab DAS than they would have had they opted out one permit. In
addition, one of the vessels is nearing the end of its DAS allocation
and would have to stop fishing until this rule is implemented. Finally,
this rule will increase the fleet's flexibility and ability to take the
entire fishing quota, which is the purpose of the rule. Currently, the
fleet is half-way through the fishing year, but only 40% through the
quota. If this rule is not implemented upon publication, the purpose of
the rule may be undermined.
Accordingly, the delay in effectiveness is unnecessary and contrary
to the public's interest, and is hereby waived.
The Council prepared an EA for Amendment 3. Based on the analysis
in the EA, the AA concluded that there will be no significant impact on
the human environment as a result of this rule. A copy of the EA is
available from the Council (see ADDRESSES).
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has prepared a FRFA in support of Amendment 3. The FRFA
incorporates the IRFA, a summary of the significant issues raised by
the public comments in response to the IRFA, NMFS' responses to those
comments, relevant analyses in the Amendment and its EA, and a summary
of the analyses completed to support the action implemented through
this rule. A copy of the analyses done in the Amendment and EA is
available from the Council (see ADDRESSES). A summary of the IRFA was
published in the proposed rule for this action and is not repeated
here. A description of why this action was considered, the objectives
of, and the legal basis for this rule is contained in the preamble to
the proposed rule and this final rule and is not repeated here.
A Summary of the Significant Issues Raised by the Public in Response to
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a
Statement of Any Changes Made in the Proposed Rule as a Result of Such
Comments
Two comments were received on the proposed rule and the amendment.
However, neither of these comments were specific to the IRFA or
economic analysis contained in Amendment 3.
Description and Estimate of Number of Small Entities to Which the Final
Rule Will Apply
The Small Business Administration (SBA) considers commercial
fishing entities (NAICS code 114111) to be small entities if they have
no more than $4 million in annual sales, while the size standard for
charter/party operators (part of NAICS cod 487210) is $7 million in
sales. The participants in the commercial red crab fishery are those
vessels issued limited access red crab permits. Although some firms own
more than one vessel, available data make it difficult to reliably
identify ownership control over more than one vessel. For this
analysis, the number of permitted vessels is considered to be a maximum
estimate of the number of small business entities. However, the total
value of landings in the red crab fishery averaged $3.44 million, so
all business entities in the harvesting sector can be categorized as
small businesses for purpose of the RFA, even if the assumption
overstates the number of business entities. For the reasons above, all
vessels with limited access permits would be considered small business
entities that would be affected by the proposed action. As of September
2011, there were four vessels with limited access red crab permits
actively operating in the red crab fishery.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
There are no compliance requirements associated with this final
rule implementing Amendment 3.
This final rule does not duplicate, overlap, or conflict with other
Federal rules.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes
All of the management measures in Amendment 3 that were approved by
NMFS provide for increased flexibility and promote efficiency within
the fishery. This action implements a measure that eliminates the DAS
requirements, which provides for increased flexibility for vessel
owners to fish without concern for their DAS clock. Amendment 3 also
removes the commercial trip limit, which eliminates regulatory discards
and promotes efficiency. Therefore, by implementing management measures
that increase flexibility and efficiency and reduce waste, NMFS has
taken the steps necessary to minimize the impacts of this action on
small entities consistent with the stated objectives of applicable
statutes.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group
[[Page 60382]]
of related rules for which an agency is required to prepare a FRFA, the
agency shall publish one or more guides to assist small entities in
complying with the rule, and shall designate such publications as
``small entity compliance guides.'' The agency shall explain the
actions a small entity is required to take to comply with a rule or
group of rules. As part of this rulemaking process, a letter to permit
holders that also serves as small entity compliance guide (the guide)
was prepared. Copies of this final rule are available from the
Northeast Regional Office, and the guide, i.e., permit holder letter,
will be sent to all holders of permits for the red crab fishery. The
guide and this final rule will be available upon request, and posted on
the Northeast Regional Office's Web site at https://www.nero.noaa.gov.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: September 23, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.2, the definition for ``Day(s)-at-Sea'' is revised, and
the definition for ``Red crab trip'' is added, in alphabetical order,
to read as follows:
Sec. 648.2 Definitions.
* * * * *
Day(s)-at-Sea (DAS), with respect to the NE multispecies and
monkfish fisheries (except as described in Sec. 648.82(k)(1)(iv)), and
the Atlantic sea scallop fishery, means the 24-hr period of time or any
part thereof during which a fishing vessel is absent from port to fish
for, possess, or land, or fishes for, possesses or lands, regulated
species, monkfish, or scallops.
* * * * *
Red crab trip, with respect to the Atlantic deep-sea red crab
fishery, means a trip on which a vessel fishes for, possesses, or
lands, or intends to fish for, possess, or land red crab in excess of
the incidental limit, as specified at Sec. 648.263(b)(1).
* * * * *
0
3. In Sec. 648.4, paragraphs (a)(13)(i)(E)(3), (a)(13)(i)(M), and
(a)(13)(i) (N) are removed; and paragraphs (a)(13)(i)(A) and (B) are
revised to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(13) * * *
(i) Limited access red crab permit --(A) Eligibility. Any vessel of
the United States that possesses or lands more than the incidental
amount of red crab, as specified in Sec. 648.263(b), per red crab trip
must have been issued and carry on board a valid limited access red
crab permit.
(B) Application/renewal restrictions. The provisions of paragraph
(a)(1)(i)(B) of this section apply.
* * * * *
Sec. 648.7 [Amended]
0
4. In Sec. 648.7, paragraph (b)(2)(iii) is removed.
0
5. In Sec. 648.10, paragraphs (h) introductory text, (h)(4), and
(h)(8) are revised to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(h) Call-in notification. The owner of a vessel issued a limited
access monkfish permit who is participating in a DAS program and who is
not required to provide notification using a VMS, and a scallop vessel
qualifying for a DAS allocation under the occasional category that has
not elected to fish under the VMS notification requirements of
paragraph (e) of this section and is not participating in the Sea
Scallop Area Access program as specified in Sec. 648.60, and any
vessel that may be required by the Regional Administrator to use the
call-in program under paragraph (i) of this section, are subject to the
following requirements:
* * * * *
(4) The vessel's confirmation numbers for the current and
immediately prior NE multispecies or monkfish fishing trip must be
maintained on board the vessel and provided to an authorized officer
immediately upon request.
* * * * *
(8) Any vessel issued a limited access scallop permit and not
issued an LAGC scallop permit that possesses or lands scallops; any
vessel issued a limited access scallop and LAGC IFQ scallop permit that
possesses or lands more than 600 lb (272.2 kg) of scallops; any vessel
issued a limited access scallop and LAGC NGOM scallop permit that
possesses or lands more than 200 lb (90.7 kg) of scallops; any vessel
issued a limited access scallop and LAGC IC scallop permit that
possesses or lands more than 40 lb (18.1 kg) of scallops; any vessel
issued a limited access NE multispecies permit subject to the NE
multispecies DAS program requirements that possesses or lands regulated
NE multispecies, except as provided in Sec. Sec. 648.10(h)(9)(ii),
648.17, and 648.89; and any vessel issued a limited access monkfish
permit subject to the monkfish DAS program and call-in requirement that
possess or lands monkfish above the incidental catch trip limits
specified in Sec. 648.94(c) shall be deemed to be in its respective
DAS program for purposes of counting DAS and will be charged DAS from
its time of sailing to landing, regardless of whether the vessel's
owner or authorized representative provides adequate notification as
required by paragraphs (e) through (h) of this section.
* * * * *
0
6. In Sec. 648.14, paragraphs (t)(2)(iii) and (t)(3)(iv) are added;
paragraphs (t)(4) through (6) are revised; and paragraph (t)(7) is
removed to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(t) * * *
(2) * * *
(iii) Fish for, possess, or land red crab, in excess of the
incidental limit specified at Sec. 648.263(b)(1), after determination
that the TAL has been reached and notice of the closure date has been
made.
* * * * *
(3) * * *
(iv) Purchase or otherwise receive for a commercial purpose in
excess of the incidental limit specified at Sec. 648.263(b)(1), after
determination that the TAL has been reached and notice of the closure
date has been made.
(4) Prohibitions on processing and mutilation. (i) Retain, possess,
or land red crab claws and legs separate from crab bodies in excess of
one standard U.S. fish tote, if fishing on a red crab trip with a valid
Federal limited access red crab permit.
(ii) Retain, possess, or land any red crab claws and legs separate
from crab bodies if the vessel has not been issued a valid Federal
limited access red crab permit or has been issued a valid Federal
limited access red crab permit, but is not fishing on a dedicated red
crab trip.
(iii) Retain, possess, or land more than two claws and eight legs
per crab if the vessel has been issued a valid Federal red crab
incidental catch permit, or has been issued a valid Federal limited
access red crab permit and is not fishing on a dedicated red crab trip.
[[Page 60383]]
(iv) Possess or land red crabs that have been fully processed at
sea, i.e., engage in any activity that removes meat from any part of a
red crab, unless a preponderance of available evidence shows that the
vessel fished exclusively in state waters and was not issued a valid
Federal permit.
(5) Gear requirements. Fail to comply with any gear requirements or
restrictions specified at Sec. 648.264.
(6) Presumption. For purposes of this part, the following
presumption applies: All red crab retained or possessed on a vessel
issued any permit under Sec. 648.4 are deemed to have been harvested
in or from the Red Crab Management Unit, unless the preponderance of
all submitted evidence demonstrates that such red crab were harvested
by a vessel fishing exclusively outside of the Red Crab Management Unit
or in state waters.
* * * * *
0
7. Section 648.260 is revised to read as follows:
Sec. 648.260 Specifications.
(a) Annual review and specifications process. The Council, the Red
Crab Plan Development Team (PDT), and the Red Crab Advisory Panel shall
monitor the status of the red crab fishery and resource.
(1) The Red Crab PDT shall meet at least once annually during the
intervening years between Stock Assessment and Fishery Evaluation
(SAFE) Reports, described in paragraph (b) of this section, to review
the status of the stock and the fishery. Based on such review, the PDT
shall provide a report to the Council on any changes or new information
about the red crab stock and/or fishery, and it shall recommend whether
the specifications for the upcoming year(s) need to be modified. At a
minimum, this review shall include a review of at least the following
data, if available: commercial catch data; current estimates of fishing
mortality and catch-per-unit-effort (CPUE); discards; stock status;
recent estimates of recruitment; virtual population analysis results
and other estimates of stock size; sea sampling, port sampling, and
survey data or, if sea sampling data are unavailable, length frequency
information from port sampling and/or surveys; impact of other
fisheries on the mortality of red crabs; and any other relevant
information.
(2) If new and/or additional information becomes available, the Red
Crab PDT shall consider it during this annual review. Based on this
review, the Red Crab PDT shall provide guidance to the Red Crab
Committee and the Council regarding the need to adjust measures in the
Red Crab FMP to better achieve the FMP's objectives. After considering
guidance, the Council may submit to NMFS its recommendations for
changes to management measures, as appropriate, through the
specifications process described in this section, the framework process
specified in Sec. 648.261, or through an amendment to the FMP.
(3) Based on the annual review, described above, and/or the SAFE
Report described in paragraph (b) of this section, recommendations for
acceptable biological catch (ABC) from the Scientific and Statistical
Committee (SSC), and any other relevant information, the Red Crab PDT
shall recommend to the Red Crab Committee and Council the following
specifications for harvest of red crab: an annual catch limit (ACL) set
less than or equal to ABC; and total allowable landings (TAL) necessary
to meet the objectives of the FMP in each red crab fishing year,
specified for a period of up to 3 fishing years.
(4) The PDT, after its review of the available information on the
status of the stock and the fishery, may recommend to the Council any
measures necessary to assure that the specifications will not be
exceeded, as well as changes to the appropriate specifications.
(5) Taking into account the annual review and/or SAFE Report
described in paragraph (b) of this section, the advice of the SSC, and
any other relevant information, the Red Crab PDT may also recommend to
the Red Crab Committee and Council changes to stock status
determination criteria and associated thresholds based on the best
scientific information available, including information from peer-
reviewed stock assessments of red crab. These adjustments may be
included in the Council's specifications for the red crab fishery.
(6) Council recommendation--(i) The Council shall review the
recommendations of the Red Crab PDT, Red Crab Committee, and SSC, any
public comment received thereon, and any other relevant information,
and make a recommendation to the Regional Administrator on appropriate
specifications and any measures necessary to assure that the
specifications will not be exceeded.
(ii) The Council's recommendation must include supporting
documentation, as appropriate, concerning the environmental, economic,
and social impacts of the recommendations. The Regional Administrator
shall consider the recommendations and publish a rule in the Federal
Register proposing specifications and associated measures, consistent
with the Administrative Procedure Act.
(iii) The Regional Administrator may propose specifications
different than those recommended by the Council. If the specifications
published in the Federal Register differ from those recommended by the
Council, the reasons for any differences must be clearly stated and the
revised specifications must satisfy the criteria set forth in this
section, the FMP, and other applicable laws.
(iv) If the final specifications are not published in the Federal
Register for the start of the fishing year, the previous year's
specifications shall remain in effect until superseded by the final
rule implementing the current year's specifications, to ensure that
there is no lapse in regulations while new specifications are
completed.
(b) SAFE Report. (1) The Red Crab PDT shall prepare a SAFE Report
at least every 3 yr. Based on the SAFE Report, the Red Crab PDT shall
develop and present to the Council recommended specifications as
defined in paragraph (a) of this section for up to 3 fishing years. The
SAFE Report shall be the primary vehicle for the presentation of all
updated biological and socio-economic information regarding the red
crab fishery. The SAFE Report shall provide source data for any
adjustments to the management measures that may be needed to continue
to meet the goals and objectives of the FMP.
(2) In any year in which a SAFE Report is not completed by the Red
Crab PDT, the annual review process described in paragraph (a) of this
section shall be used to recommend any necessary adjustments to
specifications and/or management measures in the FMP.
0
8. Section 648.262 is revised to read as follows:
Sec. 648.262 Accountability measures for red crab limited access
vessels.
(a) Closure authority. NMFS shall close the EEZ to fishing for red
crab in excess of the incidental limit by commercial vessels for the
remainder of the fishing year if the Regional Administrator determines
that the TAL has been harvested. Upon notification of the closure, a
vessel issued a limited access red crab permit may not fish for, catch,
possess, transport, land, sell, trade, or barter, in excess of 500 lb
(226.8 kg) of red crab, or its equivalent
[[Page 60384]]
in weight as specified at Sec. 648.263(a)(2)(i) and (ii), per fishing
trip in or from the Red Crab Management Unit.
(b) Adjustment for an overage. (1) If NMFS determines that the TAL
was exceeded in a given fishing year, the exact amount of the landings
overage will be deducted, as soon as is practicable, from a subsequent
single fishing year's TAL, through notification consistent with the
Administrative Procedure Act.
(2) If NMFS determines that the ACL was exceeded in a given fishing
year, the exact amount of an overage that was not already deducted from
the TAL under paragraph (b)(i) of this section will be deducted, as
soon as is practicable, from a subsequent single fishing year's TAL,
through notification consistent with the Administrative Procedure Act.
0
9. In Sec. 648.263, paragraph (a)(1) is removed and reserved, and
paragraphs (a)(5) and (b)(1) are revised to read as follows:
Sec. 648.263 Red crab possession and landing restrictions.
(a) * * *
(5) Mutilation restriction. A vessel may not retain, possess, or
land red crab claws and legs separate from crab bodies in excess of one
standard U.S. fish tote per trip when fishing on a dedicated red crab
trip.
(b) * * *
(1) Possession and landing restrictions. A vessel or operator of a
vessel that has been issued a red crab incidental catch permit, or a
vessel issued a limited access red crab permit not on a dedicated red
crab trip, as defined in Sec. 648.2, may catch, possess, transport,
land, sell, trade, or barter, up to 500 lb (226.8 kg) of red crab, or
its equivalent in weight as specified at paragraphs (a)(1)(i) and (ii)
of this section, per fishing trip in or from the Red Crab Management
Unit.
* * * * *
0
10. In Sec. 648.264, paragraph (a)(1) is revised to read as follows:
Sec. 648.264 Gear requirements/restrictions.
(a) * * *
(1) Limited access red crab vessel may not harvest red crab from
any fishing gear other than red crab traps/pots, marked as specified by
paragraph (a)(5) of this section.
* * * * *
[FR Doc. 2011-25158 Filed 9-28-11; 8:45 am]
BILLING CODE 3510-22-P